Balkinization  

Tuesday, November 25, 2008

Can Hillary Be Secretary of State? or, Pass the Emoluments, Please

JB

Hillary Clinton was elected to the Senate in 2006. A January 2008 executive order pursuant to a general cost of living adjustment statute increased the Secretary of State's salary (along with many other federal offices). January 2008 falls within the term for which Senator Clinton was elected. Her appointment to Secretary of State would also be during the time for which she was elected. The Secretary of State is a civil office under the Authority of the United States.

The Emoluments Clause (or Ineligibility Clause), Article I, § 6, cl. 2 provides:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .


Madison's notes on the provision (June 23, 1787) are here. They do little to help Senator Clinton's cause.

If Clinton's term had ended before her appointment as Secretary of State, there would be no problem. If the COLA had occurred during her first term (from 2000 to 2006) there would also be no problem. See the discussion in this OLC memo. Similarly, if Senator Clinton were appointed to a position created after 2012, when her term expires, there would be no problem. See this OLC memo. And finally, there might not be a problem if no particular salary had been assigned to the office. See this OLC memo.

There remains the question of whether Congress could simply reduce the salary of the Secretary of State to pre-2006 levels. This is the so-called "Saxbe Fix."

The Saxbe Fix has been tried before, with some grumbling. The question is whether it should continue as a precedent when it is not consistent with the constitutional text. On this question, see the discussions here, here, and here.

For me the question boils down to whether the text is ambiguous, in which case we could offer a limiting construction consistent with its purposes, or whether it is clear and unequivocal, in which case we cannot.
The purpose of the Clause is to prevent legislative corruption and the multiplication of new offices as sinecures or golden parachutes. If the language of the text is ambiguous, the use of the Saxbe Fix wouldn't seem to violate the purposes of the Clause.

But is the text ambiguous? The text says "shall have been encreased during such time [for which the Senator was elected]." The term "shall have been increased" seems to focus on whether any act increased the salary, and thus it would include cases where the salary was increased and then decreased during the Senator's term of office. Of course, this reading doesn't really serve the purposes of the Clause. Could we read the text to mean "shall have had a net increase at the time of appointment?" That would allow the Saxbe Fix.

You might argue that the Ineligibility Clause really is ambiguous because the words "shall have been increased" might only be a fancier, eighteenth century way of way of saying "shall have increased"; the latter expression would be (more) consistent with looking to the net result, rather than to whether any particular act of increasing salaries occurred. But it's worth noting that the people who wrote the text could have used "shall have increased" (it was perfectly good English at the time) and they didn't.

My guess is that the question of whether you think the clause is ambiguous or clear will turn on whether you think it creates a serious problem-- for example, you think it very important that Presidents should be able to nominate the people they think are most qualified to federal offices. That is, the consequences of an interpretation inevitably affect our judgments of clarity and ambiguity. There are limits to this flexibility, of course. I would have real problems finding the requirement of a 35 year old president ambiguous enough to look to an underlying purpose-- say, maturity. I would be hard pressed to find the age requirement sufficiently ambiguous to allow a 30 year old but very emotionally mature President.

For the reasons described above, the Ineligibility Clause seems more ambiguous than the 35 year age requirement. However, I don't think that the clause creates a serious problem, and so, if we were writing on a clean slate, I would hold that the Saxbe Fix doesn't work. But the question turns out to be far more difficult than I had initially thought. So let me conclude this post with what I think is the best argument against my position, and in favor of the constitutionality of the Saxbe Fix.

If you think that the political branches should be given some leeway in close cases, if you also think there is no overriding and very important principle that is threatened, and if you think that past precedents should generally be respected unless there are good reasons to ignore them, you should allow the Saxbe Fix. You might even quote the following language on constitutional construction:

It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

For "an immense property," substitute "the nation's foreign policy."

Comments:

This comment has been removed by the author.
 

I tend to think that the clause is ambiguous, but not so much because the word “increased” is ambiguous as because the use of perfect aspect (“shall have been increased”) may create semantic ambiguities.
Consider the sentence “I have caught a cold.” That sentence has (at least) two possible readings: “I have a cold now” and “there have been times in the past when I caught a cold (but I don’t necessarily have a cold now)”. The first reading is a “resultative” reading and the second is an “existential” reading.

Let me use an example to try to illustrate how this might apply to the Hillary situation. Suppose that at time X the salary started off at $100,000. At time X+1, it was increased to $150,000. Then at X+2 it was cut back to $100,000 and later, at X+3, it increased to $125,000. From the perspective of X+3, one might well say that since time X, the salary “has been increased to $125,000.”

This may suggest that the emoluments clause can be interpreted as having a resultative reading, in which case it seems to me that the Saxbe Fix would be constitutional.

(Caveat: These are tentative thoughts, based on less than an hour of googling. This is really a question for Language Log.)
 

Another possibility is that the clause, as written, is stupid. No one thinks (I suspect it fair to say) that Hillary Clinton is taking this offer because of the increase in salary. Since much as been written on Constitutional Stupidities, I will leave this point.

But how different in practice is this from the ignoring of the 12th Amendment when Cheney and Bush ran together:

The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

Bush and Cheney have proven to be a disastrous combination. But I find it hard to disqualify Texas's electoral votes for Cheney because he resided in the same state as Bush (prior to a transparent change of residency to Wyoming). And much as I am no fan of Hillary Clinton, I would find it silly to disqualify her on these grounds as well.
 

This is by no means the first time a member of Congress has been appointed to the Cabinet. What has the practice been up until now?
 

A nitpick: the distinction between "shall have been increased" and "shall have increased" is that between passive and active voice. I see no significant semantic consequence of the sort Prof. Balkin ponders. I gather the passive voice was used to parallel grammatically the alternative prohibitory circumstance, namely, an office that "shall have been created." Salaries increase or are increased, but offices don't create. They must be created by some agent.
 

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Enlightened Layperson, the precedents are mixed. In the early 1880s, the OLC concluded that not only could a not be appointed during the period for which he was elected to an executive office created during the same, this was so even though the Senator had resigned before the office was created (OLC has stuck to that position repeatedly, ever since, which also confirms that Clinton can't escape the noose simply by resignation). In the late 1890s, this was followed in the case of a Senator who would be ambassador to Mexico. See, for more details, footnote one of my post here.

A string of recent - i.e. Clinton and Bush 43 - OLC memos have concluded that the clause is not offended in various circumstances, but these of course confirm that exceptio probat regulam in casibus non exceptis.

Things start to change once the polity is poisoned by the progressive era. Senators Knox, Saxbe and Bentsen are allowed in for willful Presidents on legally dubious rationales, based on the idea that the clause isn't offended so long as the pay increase is removed. Rejecting Clinton as ineligible would be a tremendous step back towards government that accepts the limitations of the Constitution - a change that even I could believe in!
 

There's 2 precedents I am aware of. Saxbe was appointed by Nixon, and they lowered his salary back down, and Bentsen was appointed by Clinton, and they did the same thing. Both fairly recent.
 

Could the issue be with the noun "emolument" rather than the verb? As I understand the facts, the issue comes from an inflation adjustment. If the emolument is a salary in real dollars, then there was no increase. The inflation adjustment merely maintained it at the established level.
 

Doesn't reading the clause as unambiguous create a rather dangerous precedent?

Namely that if you can raise salaries by executive order, an outgoing President could theoretically destroy the ability of his successor to appoint anyone from Congress simply by raising all the salaries of cabinet positions in the Executive branch, right?

Clearly this was intended to prevent legislature's abuse of emoluments, not necessarily those done without any legislative involvement whatsoever.

Which raises the question, what would Madison think of an executive order being used to raise salaries instead of legislation? (A question which will undoubtedly be ignored by the people who will champion loudly about Madison's intentions)
 

What Noboru said. The clause is clearly designed to 1)keep legislators from greasing their own palms and 2)keep the branches of government separated.

I assume, however, that this executive order was made subsequent to a legislative appropriations bill of some sort (as indicated here)
 

What it was meant to do is pretty clear, (I don't think they anticipated the Executive branch being allowed to increase anybody's pay.) but what it DOES is pretty clear, too. I don't think it's the least bit ambiguous.

Sometimes the Constitution really does mean stupid things. If that's enough reason to pretend that it doesn't, we don't have a Constitution anymore, because people who don't like a particular clause will always think it's stupid, and that they are thus permitted to claim that it's 'ambiguous'.
 

Does a COLA count as an increase?

Going to the Wikipedia entry on the "Saxbe Fix," Sen. Black's appointment to the Supreme Court is referenced. A Time magazine article noted "Actually the Retirement Act does not increase the emoluments of Justices but guarantees their pensions against reduction."

There is also the grandfathered argument. Compare Stuart v. Laird, which appealed to precedent (then not even 15 years) to uphold the legitimacy of circuit riding.

Here we have precedent going back to at least 1909, self-serving as it might have been.

It's an interesting issue ... it is rather ironic that difference amounting to around $5000, passed during the presidency of another party, and which could still be reduced to LESS (even much less) than the previous amount, and maybe even not be a NET gain at all, could disallow the appointment.

Also, the passive tense of "shall have been encreased" is curious ... economic forces alone can "increase" the net value of a salary, if we want to be literal about it.

Also, it is pretty broad, since "compensation" isn't used as compared to the 27A. How about tax cuts? Any number of general benefits that would apply to any federal employee, even amounting to a few cents. etc.

BTW, again "legislative appropriations" were involved here. It was not just an executive order.
 

Suppose the faculty at Yale Law School get a raise in September, and the raise is rescinded in October.

In November the dean, discussing recent events at the school, says "Faculty salaries have been increased."

What would be your reaction to that statement?
 

Bernard,

Factually correct, but actually inaccurate.
 

The prohibition in this clause is clear - no elected office holder may be appointed to a civil office when that civil office's pay or benefits have been increased during the term for which the officeholder was elected. The term doesn't make exceptions, arguments for the appointee declining of the pay increase or the argument for what is a "net" increase do not resolve the problem. There is still an increase, in some form, for that office. The only constitutionally permissible fix is for Congress to act to repeal the salary increase for the office of Secretary of State until January 3, 2013 - the date Sen. Clinton's term expires. Otherwise, she's ineligible for the appointment.
 

So how would the prohibition be enforced? If the president ignores the clause in making an appointment, and the Senate ignores it by confirming the appointment, then what? Would any citizen have standing to sue for enforcement? Could a Federal court order the removal of a Cabinet officer and/or nullify the appointment/confirmation?
 

Would any citizen have standing to sue for enforcement?

The simplest suggestion I've seen involves passports. The State Department issues them. If anyone is denied a passport, s/he could sue and argue that the decision was improper due to the incapacity of the Secretary.

For more, see this and the related thread at Volokh.
 

I think the answer is that it's not going to be enforced, the Emoluments clause has joined the quorum clause, or the requirement that bills actually have been passed by both chambers; Part of the growing portion of the Constitution which is no longer in force because our political class finds it inconvenient, and the judiciary will not admit the citizenry have a right to demand that officeholders obey the Constitution.

This is how the Constitution is going to die; Not with a crisis, but with a gradual slide into irrelevancy.
 

Listening simultaneously to Sandy and Brett reminds me how often people can be seeming to use the same words but actually say entirely different things.
 

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